Canada’s Free Expression Report Card: What grades would you have given?

Wednesday, April 30, 2014

One of the highlights of CJFE’s Review of Free Expression in Canada is our annual Report Card, which assigns grades to various institutions based on their performance upholding free expression across Canada.

The Report Card (PDF) is one of the most controversial components of the Review; our grades are often met with mixed response. Some think we’ve been too harsh, while others believe we haven’t been critical enough.

We stand by the grades we’ve assigned, but we also want to know what you think. Read our explanations below and cast your vote for what grades you would have given.

Access to Information: F

The federal access to information (ATI) system continues to be a source of bad news and a bad grade. Recently released performance statistics for 2012-13, when corrected for the distortion created by one unrepresentative department, show that delays beyond the 30-day time limit still affect almost 45 per cent of requests, while more than 80 per cent of responses are partially or mostly censored. Staffing and budget cuts are crippling the ATI capacity of some departments (for example, see the RCMP case below). There has been a significant increase in complaints about delays and a 51 per cent increase in complaints about missing records in 2012-13. Missing records may be the result of the destruction of, failure to preserve or failure to create records concerning government deliberations and decision-making. Without major reform of the Access Act and a new law requiring the creation of records, Canadians may witness the disappearance of a significant part of our history.

The RCMP: I(ncomplete)

Access to information complaints against the RCMP tripled between 2011 and 2013. The RCMP understaffed its ATI office so badly that it could not even acknowledge the receipt of requests, let alone respond to them, within the 30 days required by law. The information commissioner couldn’t start investigating the delays because the requests didn’t even have file numbers to identify them. One request, submitted in September 2012, received a response seven months later, in April 2013, with this explanation: “We cannot give you a time frame for when your request will be completed at this time, but it is approximately half way thru [sic] the process.” The RCMP is working with the information commissioner to correct these problems, but has taken little action so far.

Government transparency in Trans-Pacific Partnership negotiations: F

Canada joined the Trans-Pacific Partnership (TPP) agreement in 2012 even though it meant agreeing to all the terms previously negotiated, without actually knowing what they are. A draft of the Intellectual Property Chapter, leaked in October 2013, highlighted just how damaging this secret trade agreement could be to free expression. One of the most concerning provisions would require Internet service providers to act as copyright monitors, monitoring and filtering users’ content and Internet access. Canada would have to change its legal framework to align with that of the U.S., which could require amending regulations for patents, copyright and fair use, with severe implications for the freedom to publish and access information.

For more on this topic, see Adam Kingsmith’s article, “Digital Freedoms in Danger,” on page 9.

Whistleblowers: Edgar Schmidt and Sylvie Therrien: A

Despite a lack of protections, brave Canadians in the civil service do come forward and blow the whistle at great personal risk. The two most recent examples are Sylvie Therrien, who worked on employment insurance cases in Vancouver, and Edgar Schmidt, a lawyer in the Justice Department in Ottawa. Both are granted a top grade for the personal and professional sacrifices they have made.

Federal and provincial governments’ whistleblower protection: F

Little has been done across Canada in the past year to develop a more active whistleblower system or to protect those who speak out in the public interest. Major revisions needed include putting teeth in provincial and federal whistleblower legislation and providing real protection for whistleblowers.

Unlike the United Kingdom, the United States and Australia, Canada is alone in lacking specific legislation that provides whistleblowers with real job security. The limited legislation that covers government employees is essentially powerless, and there’s no protection anywhere in Canada for the private sector. As a result, whistleblowers in Canada almost always face dismissal.

For more on this topic, see David Hutton’s article, “They Blew It,” on page 12.

Anti-SLAPP in Ontario: B

If wealthy logging companies or developers want to silence their critics, it’s fairly easy for them to sue for defamation and bury their critics under mountains of paperwork, years of litigation and expensive legal bills—regardless of whether any libel or slander has actually occurred. These lawsuits are called “SLAPPs” (strategic lawsuits against public participation), and most Canadians, with the exception of Quebecers—who have had anti-SLAPP laws since 2009—have little protection against them. An initiative to change that in Ontario deserves a cautious B grade. The minority Wynne government has introduced Bill 83, which would make it more difficult to bring frivolous lawsuits against people speaking out on a matter of public interest. However, as of press time, the bill has yet to pass. All three parties have indicated support for Bill 83, but there’s no guarantee that support will stand, what with outside lobbying and the threat of an election. The fight to enact anti-SLAPP legislation is far from over.

CSEC and the Office of the Communications Security Establishment Commissioner: D

Leaks from former NSA contractor Edward Snowden suggest that Communications Security Establishment Canada (CSEC)—Canada’s version of the NSA—has secretly been collecting the same kinds of private information as its U.S. counterpart. The leaks show CSEC has been spying on Canadians through Wi-Fi connections at an “unnamed” airport, collecting data on businesses and politicians in Brazil, and allowing security agencies from other countries access to surveillance of Canadian citizens. Unfortunately, while the NSA has come under deep scrutiny in the U.S., and American politicians—including President Barack Obama—are being forced to speak out on the situation, the Canadian government is staying almost completely silent. Worse still, the independent commissioner who is supposed to hold CSEC accountable has been unable to determine what its agents are up to because of “incomplete” records, meaning the institution is essentially operating behind closed doors and without proper oversight.